On Tuesday, the U.S. Court of Appeals for the 7th Circuit heard oral arguments in the ACLU’s challenge to the Illinois wiretapping law, which essentially makes it a felony to record on-duty police officers. The arguments produced some head-scratching comments from Judge Richard Posner, who is often described as libertarian—or at least as possessing some libertarian leanings.

“If you permit the audio recordings, they’ll be a lot more eavesdropping.…There’s going to be a lot of this snooping around by reporters and bloggers,” U.S. 7th Circuit Judge Richard Posner said. “Yes, it’s a bad thing. There is such a thing as privacy.”…

“The gangs who are interested in monitoring each other will rejoice in your case,” Posner told the ACLU.

He said gang members who want to snoop on each other could start secretly recording conversations and say they’re protected because they were taping suspected police informants.

Reason’s Jacob Sullum comments:

They could say that, but they’d be wrong, since they would be recording private citizens in private places, as opposed to public servants in public places. There is indeed “such a thing as privacy,” but an arbitrarily defined legal right to privacy that is unmoored from property rights and contract rights is a menace, as this case shows. Even worse is a concept of privacy that offers less protection to ordinary citizens than it does to police, who have far more power to abuse.

Posner, by the way, has been fairly skeptical of personal privacy protections in the past, and in fact has argued that the law should begin with a presumption against them. So it’s hard to understand why he’d not only invoke privacy here, but suggest it ought to overcome some significant First Amendment concerns.

It’s also important to keep in mind why this law was passed, and how it has been enforced. The Illinois law originally included the same “reasonable expectation of privacy” provision included in the wiretapping laws of all other all-party consent states, save for Massachusetts. But in the 1980s, the state’s supreme court overturned the conviction of a man who had recorded two cops from the back of a police cruiser, finding—as other courts have—that on-duty cops have no such expectation of privacy. It was in response to that ruling that the Illinois legislature amended the law to remove the privacy provision.

The law as written doesn’t single out cops for protection, but if anyone has since been arrested or charged in Illinois for recording in a public setting someone who wasn’t a police officer, I’m not aware of it. (It may have happened, but it hasn’t happened often.) The police only seem interested in enforcing the law when they’re the ones being recorded. Now here may well be non-pernicious reasons for this. I’d imagine that your average citizen in Illinois who doesn’t wear a badge either doesn’t know that it’s illegal for someone to record him in public without his permission, isn’t aware when he is being recorded, or doesn’t particularly care enough to file a criminal complaint.

But as enforced, the law does exactly what Sullum rightly argues it shouldn’t. It gives an extra set of privacy rights to police officer that aren’t afforded to citizens. (If I’m not mistaken, the law also includes an exception that allows police to record citizens without their permission if it’s done as part of an investigation.)

As for Posner’s fears of “reporters and bloggers snooping around,” isn’t keeping government officials transparent and accountable  kinda’ the main reason why we have a free press in the first place? Because we want to encourage that sort of thing?

This is a state where we now know police in its largest city were torturing people in interrogation rooms for more than two decades. It’s a state that in recent years has seen numerous scandals involving police brutality captured on surveillance video—video that has on several occasions contradicted police reports. In Chicago, we also know that complaints about police abuse aren’t taken all that seriously. Given that history, it’s hard to contemplate how a judge like Posner could think a citizen not only has no right to preserve a recording of his own encounters with cops, but could defend a law subjecting anyone who does to a felony charge and up to 15 years in prison.

CORRECTION:  Actually, the Illinois law does single out law enforcement officials for special treatment. It’s a Class 1 felony to record them, and a Class 3 or 4 (depending whether it’s a first offense) for recording anyone else. Which of course makes the law even worse.

Orin Kerr explains:

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that “exceeds authorized access” to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed “authorized access.” Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include “terms of use” violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don’t like. Imagine the Democratic Party setting up a public website and announcing that no Republicans can visit. Every Republican who checked out the site could be a criminal for exceeding authorized access.

If that sounds far-fetched, consider a few recent cases. In 2009, the Justice Department prosecuted a woman for violating the “terms of service” of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?

What happens is merely another step toward the complete criminalization of everyday life.

Rovinj, Croatia.

• I think that if I were a death penalty supporter, I’d be fighting like hell to make sure Troy Davis isn’t executed.
• Write your own caption.
• A police department that gets it. Although you should be able to record someone else’s interaction with cops as well, so long as you aren’t physically interfering.
• Study: People with delusions of grandeur tend to become very successful. Other study: But subtler, reality-based optimism may actually hinder success. This totally explains politics.
• A defense of Lochner.
• The cop who killed former NFL player Deacon Turner in that case with the mysterious non-functioning security camera has shot another man.
• Signs that the DA may back down in the Kelly Thomas beating death.
• Feds spend $3.4 billion on anti-terror program for food supply, have little to show for it.
• Rick Perry vs. the lap dance lobby.

I’ve pointed out that Mother Jones, a magazine with a clear political perspective and clear political agenda*, keeps secret the identity of its donors. So I was clicking over to read this excellent Adam Serwer piece on the new federal bill that would allow for the deportation of domestic abuse victims, and I got this pop-up ad.

So they’re now explicitly requesting you donate, anonymously, specifically to their efforts to expose people who anonymously donate to political causes.

(*Not that there’s anything wrong with that.)

The Washington Post chastises the GOP primary field for its dearth of war lust.

. . . why Rick Perry replaced those members of the Texas Forensics Commission, this ought to put them to rest.

In 2008, the Commission held a meeting to determine what cases to investigate, and decided to look into the complaint raised by the Innocence Project about the conviction of Todd Willingham. According to Bassett, who spoke recently to The Politics Blog, the attorney general of Texas was present at the meeting, and gave his approval to the investigation. But when the Commission hired an independent investigator to examine the arson investigation upon which Willingham’s execution was predicated, Bassett says that he was called into the Governor’s office and “read the riot act” by Perry’s lawyers. “I was told that I did not have jurisdiction to investigate the case, which was odd, since the Attorney General was at the meeting where we decided to go ahead with the investigation.”

Bassett reviewed the law that created the Commission, and decided to go ahead with the investigation despite the Governor’s opposition. A year later, the independent investigator completed his investigation and found that not only did the arson investigators in the Willingham case fail to meet current scientific standards, it failed to meet the standards that were in place at the time the investigation began in 1991. Indeed, the independent investigator concluded that there was no scientific basis for Willingham’s conviction, and in September 2009, Bassett moved to a hold a public hearing about the case. Days before the hearing was convened, he says he received a call from Rick Perry’s spokeswoman. His term had expired, and because he “served at the governor’s pleasure,” he was not being reappointed. “I was told the governor had decided to ‘go in a different direction,’” Bassett says.

The “different direction” amounted to this: the appointment of a Republican prosecutor in the place of Bassett, a Democrat; a procedural review in the place of the public hearing, followed by an investigation of whether the Commission had the power to investigate the Willingham case; and a report by the Attorney General that overruled his office’s original stance and concluded that the Commission had the power to recommend forensic standards in the present but not to investigate whether those standards were violated in the past. In other words, the state of Texas concerned itself with legalisms, but avoided facing the legal question of whether it had put to death an innocent man.

My HuffPost colleague Jason Linkins adds a bit more.

From there, Bassett was replaced with Williamson County District Attorney John Bradley — a political ally of Perry’s. And as I’ve run down here, Bradley distinguished himself mainly by going to great lengths to delay and impede the commission’s investigation of the Willingham execution. Perhaps the most significant move Bradley made was restructuring the commission into subcommittees, one of which (the one he appointed himself to chair) would tackle the Willingham case. By shunting the commission’s work into smaller groups, Bradley managed to evade Texas’ Open Meetings Act — which only applied to meetings for which there was a set quorum of the whole. Craig Beyler, the independent investigator mentioned above, backed Bassett’s contention that the commission’s work had been subverted by political pressure, writing to commission coordinator Leigh Tomlin, “Sadly, the political influence which has been exercised with respect to the commission has compromised the integrity of the enterprise.”

As I’ve written before, the problem here isn’t necessarily that Perry presided over the execution of an innocent man. There wasn’t much he could have done to stop it. The death penalty also isn’t really an issue that much affects a U.S. president. Federal executions are pretty rare.

The problem is that since doubts have been raised about the Willingham case, Perry has done everything in his power to prevent anyone from knowing the truth about what happened. His instinct here has been and is to cover all of this up and to silence critics, and all while professing an unyielding faith that when it comes to executions, the state of Texas always gets it right, all the time

I’ll be giving a “webinar” tonight for Students for Liberty. You can pour yourself a glass of bourbon and watch me blather on about stuff as if I were actually in your living room.

Title: “You’re Going to Jail. The Criminalization of Everything.”

Details here.

Rovinj, Croatia.

• Study: 5,400 Capitol Hill staffers have become lobbyists over the last 10 years.
• Your ill-informed attack on libertarians of the week.
• Why al-Qaeda was never an existential threat.
• “What would you call it if you were on the ground and I kicked you for no legitimate reason?”
• Headline of the day.
• Ow.
• Wow.
• Florida “Cop of the Month” to motorist: “You see, the law says that we can videotape you, but you don’t have the right to videotape us without our consent or record us.”

Rovinj, Croatia.

• Attempted puppycide.
• “Forty Texas Cops Rob a Strip Club.”
• Cops ticket man for directing traffic at a broken stoplight, then leave without replacing him.
• Rick Perry seeks blessing from Joe Arpaio.
• Barack Obama, drug warrior.
• Police board plane, arrest, cuff brown people, release with no charges.
• Man arrested, charged with DUI despite blowing 0.0 on breath test. Note all the boilerplate language in the arrest report about smelling booze, driver being flush and glassy-eyed, etc.

A reader sends this incredible column from Tactical Response magazine, which I gather is a periodical for SWAT types.

Team commanders must raise the profile of their teams. Stay active. Yes, I mean do warrant service and drug raids even if you have to poach the work. First, your team needs the training time under true callout conditions. If all your team does is train, but seldom deploy, you will end up training just to train. You need to train to fight. You already know that.

Second, make SWAT familiar to senior police staff. Everyone fears the unknown. Don’t let SWAT be that unknown. Make deploying SWAT something that is routine, not something only done after much hand-wringing. “Oh, no! You mean we have to call SWAT? Oh, I don’t know, I just don’t know. Really? Call SWAT? Really?”

Yes, you should have clear guidelines for activating the team. But how many times has the callout of a part-time team been delayed or denied when those callout criteria were met? We really do need to explain that SWAT is less of a threat than the people in the calls we are responding to—you know, those vewy, vewy bad people.

The column actually makes some good points about a SWAT commander knowing his team’s limitations.

But note the complete disregard for the rights of the people being raided in the excerpt above. The author is actually suggesting SWAT commanders lobby to have their teams deployed in situations for which they normally wouldn’t be to ensure they’re in good practice. Put another way, he suggests they practice their door smashing, room-clearing, flash-grenade deploying, and other paramilitary tactics on less-than-violent people, so they’re in better form when a real threat arises. Never mind that there are going to be living, breathing, probably bleeding people on the receiving end of these “practice” raids. There’s officer safety and “SWAT team profile” to think about. It’s just an appalling mindset.

• Is Social Security a Ponzi scheme? You might be surprised who has argued yes.
• The perpetual security state.
• Federal court overturns police search conducted on a “hunch.”
• The government would need to prevent 1,667 Times Square-style attacks each year to justify homeland security spending.
• Photos from the early age of flight attendants.
• Puppycide.
• In case you needed a reason to continue ignoring Ann Coulter.
• Green subsidies and corruption.
• “What people don’t get about my job.”

In response (I think!) to this post:

Similarly, the blogger “The Agitator” campaigned as a libertarian, but was only libertarian on those issues agreeable to the left. He was opposed to the police and army, but supported all the rest of the state, and opposed the rights of private property, for example he opposed the right to eject a journalist from private property. And in due course, he received a financial reward from the Huffington Post, an organization that runs at a loss dispensing money to left wing activists – basically it launders money from the state, rendering it nominally private, and then dispenses that money to left wing journalists and bloggers. The state does favors to nominally private businesses, which “donate” to the Huffington Post, and the Huffington Post then financially rewards people, such as the blogger, who follow the line.

That’s the topic of my new piece at HuffPost.

I’ve had some requests for higher-rez photos from my vacation last May. So I’ve uploaded all of my photos from Budapest to Picasa. Here’s a slideshow. Click twice to get to Picasa album page.

I’ve used services like Costco’s canvas printing service and Canvas on Demand to make canvas prints of some of these, and they’re beautiful. It’s quite a bit cheaper than traditional printing and framing. The canvas prints are also much lighter than framed prints, so they’re easier to hang (I hang mine with thumbtacks).

If you’re interested in purchasing any of these, or any other photos I post here, drop me an email. I’m thinking I’ll charge the cost of the print, plus 50 percent. Plus shipping.

I love this commercial.

Budapest.

• Headline of the day.
• Runner-up.
• I wrote an introductory post on the law, the media, and the Internet Georgetown Law Journal’s new website.
• Ben & Jerry introduce a funny but unappetizing-sounding new flavor of ice cream.
• “‘Brown watcher’ sounds like a fetish niche market. “

They enthusiastically applaud government executions. And they’re certain government is incompetent, except when it comes to bombing foreigners, torturing Muslims, and killing guilty people, in which cases government is always, 100 percent, how-dare-you-even-ask-questions correct.

• Renton, Washington police just don’t know when to quit.
• Chicago man charged with attempted murder for shooting at police during a drug raid. Ready for this? Jury acquits.
• Wendy McElroy on war, peace, and passport control.
• Headline of the day.
• Hank Skinner once again files for DNA testing.
• Colorado cops fired after beating a man outside a bar, and after video showed they had lied on their police reports about the incident . . . have been reinstated. With back pay. Full video of the incident here.

Never mind  that the police lied about this guy ramming their cars, which they claim was their excuse to shoot him. Never mind that video evidence shows a police truck smashing the man’s car into police cars, strongly suggesting the cops actually created said excuse to open fire. Never mind that said excuse-creating exercise caused the man to be wrongly charged with attempted murder. Never mind that that prosecutors have decided not to charge the lying, shooting cops with any crime.

Never mind all of that, and just appreciate their sheer fucked-upedness of this sentence:

Cortes, shot in the abdomen and arm, remains charged with attempting to flee or elude police.

I’m pretty sure I’d have tried to get the hell out of there, too. But apparently, when the cops ram your car with an unmarked truck, then shoot your four times, you are legally obligated to stick around until they finish you off.

First, in Memphis:

Memphis Police have raided the wrong house, slightly injuring a mentally disabled resident.

Memphis Police Director Toney Armstrong said officers went to the wrong address to make a drug raid and will be disciplined.

Neighbors told WMC-TV on Wednesday they watched undercover police officers break down the door of the home and rush in. The disabled man and his mother were inside.

Armstrong said such mistakes are rare, but acknowledged they have occurred before in the city. He said he’s thankful no one was seriously injured or killed. Armstrong said police execute a lot of search warrants and “accidents happen.”

The chief apologized to the homeowner and said the city will pay for damages.

In California:

An immigrant family claimed on Monday that immigration agents roughed up their grandmother during a raid in Norco.

The family said dozens of immigration agents swarmed their Norco home around 3:30 p.m. 2 weeks ago.

Josephina Martinez said her 46 year-old mother-in-law sustained bruises when gun-toting agents threw her to the ground as they searched for drugs and guns.

“These officers should have realized that these 5 people were women and children and needed to treat them as such,” said Jorge Mario Cabrera, spokesperson for the Coalition for Humane Immigration Rights. “Instead they treated them like criminals.”

Cabrera said a 2 year-old girl and a 16 year-old boy were also in the house at the time, and added that it appears that agents raided the wrong house.

Also in California:

Hey, San Luis Obispo County. You’re about to buy 43 dead marijuana plants. Rather than go to trial in federal court and fight a civil rights lawsuit brought by Los Osos resident Richard Steenken, the county and Sheriff’s Department agreed to settle the case for $25,000, roughly the cash value of Steenken’s marijuana plants, which were seized in a botched drug raid on a medical marijuana card holder.

“I guess it could have been more,” Steenken said of the settlement. “But it’s a long time coming.”

Steenken, a 45-year-old addiction specialist, was arrested on Oct. 15, 2008, and two days later charged with a felony for cultivating marijuana and possessing concentrated cannabis (among other charges). With a $40,000 bail set, Steenken opted to stay in jail, where he remained until Nov. 3 when the District Attorney’s Office dismissed all charges. The judge abided, Steenken was released, and he then fought to have his property returned; it eventually was, after a court order. By the time Steenken reclaimed his property, his 43 plants—which he was allowed to cultivate under state law as a medical marijuana patient—had died.

“Basically they told us, ‘We’re going to enforce federal law,’” said Steenken’s attorney, Dana Rosenburg, who specializes in police misconduct cases. “So they’re using state money … to enforce federal law, and that’s unconstitutional.”

Steenken came home in the middle of the raid and found armed deputies at his home. They raided the home of his then-girlfriend three hours later.